Perhaps unexpectedly, if you read Tweaking the Machinery of Death, Fault Lines, Mimesis Law (July 6,2015), by Christian Farias, you will find out why it may be extremely difficult to do away with the death penalty as a matter of judicial fiat given the text of the Constitution. It is most certainly an article that deserves your attention if you are concerned with the death penalty. It is well written, objective and does a great job of setting up the arguments that the pro death penalty Justices will be asserting and the challenges the con death penalty Justices will be forced to confront.

As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.

Senator, and Presidential candidate, Ted Cruz has recently stated,

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015) (“This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. . . . . Both decisions were judicial activism, plain and simple. Both were lawless.”).

Ted Cruz is a brilliant and well-educated man and former law clerk to Chief Justice Rehnquist. If he is seriously suggesting the following, and it unfortunately appears that he is serious, Cruz is demonstrably unfit to become President despite his resume:

[T]he Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

. . .

But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.

And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.

Id.

There are at least three reasons why this proposal is wacko.

First, Mr. Cruz’s attack on the Framers–for allegedly underestimating “the justices craving for legislative power” and over estimating the “Congress’s backbone to curb it”–reflects a “Ted Cruz knows best mentality.” It ignores the debate among the brilliant Founders regarding the power of the judiciary. That debate was held and a result was reached. For Cruz to propose that he alone knows better and he alone knows more than the Founders reflects an ego the size of Texas. If we truly cherish what went on in Philadelphia, then the momentary political machinations of a right-wing ideologue ought be rejected out of hand. History has proven, as I next discuss, that the lifetime tenure provision of the Constitution adopted by our Founders, after serious debate on the subject, is the best way to insure we have a Court that can check the political branches of the federal government, that we have a Court that can check the 50 states, and, when necessary to protect the rights of the minority, that we have a Court that can check the majority. A life tenured system of Justices is a brilliant and thoughtful method of balancing power in this federal republic. Ted Cruz should know better than to reject the wisdom of the Founders.

Second, while Cruz is enraged about the gay marriage and the ACA decisions he ignores what lifetime tenure has brought us over a much broader expanse of time. Blacks have been freed from segregated schools, Nixon was instructed that no President is above the law, and each person in Texas has the right to have his or her ballot counted equally because of the Court’s “one man/one vote” declaration. Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.

Finally, George Will, a thoughtful person with unquestioned conservative credentials, suggests that Ted Cruz has become “unhinged.” Will argues convincingly that judicial elections will make the Supreme Court more political rather than less political.

Will makes his persuasive argument this way:

Cruz’s idea is congruent with the 1912 proposal of another rambunctious Ted, former president Theodore Roosevelt. Running as a full-throated Progressive (against another progressive, Democrat Woodrow Wilson, and the conservative Republican president and future chief justice William Howard Taft), TR advocated not just the recall of judges but also “the review by the people” of “certain” judicial decisions. TR embraced the core progressive belief that the ideal of limited government and hence the reality of the separation of powers are anachronisms.

It is, therefore, especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court’s political behavior by turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court’s prestige and hence its power to stand athwart rampant executives and overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.

In The Supreme Court and the Politics of Fear, New York Times (July 4, 2015)* Ms. Linda Greenhouse explains that Nixon used the Supreme Court and the antipathy for the Court to boost his political standing and that of his party:

WHEN he ran for president the second time almost half a century ago, Richard M. Nixon made Earl Warren’s Supreme Court a target of his campaign. It was a brilliant move. His accusation that the court had tilted “too far in weakening the peace forces against the criminal forces,” as he put it in a widely noticed 1967 Reader’s Digest article, resonated with a public that had seen the crime rate double since 1960.

This time around Ms. Greenhouse sees a different dynamic:

In any event, a majority of the public favors the outcome of both the health care and the marriage decisions, a CNN poll found in midweek. The majority comprised both Democrats and, significantly, independents, 63 percent of whom approved both rulings. By smaller margins, Republicans disapproved of both. For Republican politicians handcuffed to their base, which is to say all of them, there is a danger sign, surely, in their increasing distance from independent voters who will control the outcome of the next election. So too is there danger in a recent Gallup poll indicating that for the first time in seven years, more Americans identify themselves as “pro-choice” than “pro-life.”

A week after the end of a remarkable court term, the message may be this: It’s not the voters, but the Republican presidential candidates, who should be afraid.

Is she correct? Or will the likes of Ted Cruz crucify the Supreme Court such that the Peoples’ trust in the Court will be even further eroded?

Perhaps readers of this blog have an answer. I look forward to their thoughts.

The foregoing said, the battering of the Supreme Court is not as Ms. Greenhouse implies a strictly partisan affair. The Democrats twice frustrated President Nixon when he tried to fill the seat eventually filled by Harry Blackmun, see eg., here, and they did so for strictly partisan reasons.

Clement Furman Haynsworth, Jr. nominated by Nixon was rejected by Senate. Democratic U.S. Senator Philip Hart of Michigan said that Haynsworth’s decisions on civil rights and labor management were “unacceptable,” while Republican Senator Marlow Cook of Kentucky argued that Haynsworth was being “subjected to a character assassination that is unjustified.” Cook argued that Haynsworth was “a man of honesty and a man of integrity.” Ironically, in 1989, David A. Kaplan, a senior writer for The National Law Journal, wrote in the New York Time that Haynsworth was a moderate, “who’s no liberal but is close in outlook to John Paul Stevens.” David A. Kaplan, The Reagan Court – Child of Lyndon Johnson?, New York Times (1989).

President Nixon then nominated G. Harrold Carswell, a former United States Attorney, Federal District Judge, and U.S. Court of Appeals Judge. That nomination flamed out on the floor of Senate with a vote was 51 to 45. Senator Roman L. Hruska from Nebraska did not help things by stating “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”**

Finally, Nixon got Harry Blackmun through the Senate and onto the Supreme Court. At least in my memory of him, Blackmun always wore blue blazers. He also proved to be a liberal at heart. Ironically, I owe Nixon and Blackmun a lot. My judge–Donald. R. Ross–replaced the prissy little Blackmun on the Eighth Circuit and I got a clerkship soon thereafter.

Ms. Greenhouse also seems to forget the disgraceful treatment of Robert Bork at the hands of Ted Kennedy and Joe Biden. There was absolutely no doubt about the brilliant Bork’s qualifications. Rather:

To pro-choice rights legal groups, Bork’s originalist views and his belief that the Constitution does not contain a general “right to privacy” were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court’s 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork’s rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.

To illustrate the treatment of Bork, in 1992 the Oxford English Dictionary added an entry for the verb “bork,” with this definition: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.” The Democrats had a trophy to hang on their wall after their vicious attack dogs ran their prey to ground.

In summary, Ms. Greenhouse’s article is intriguing. Her selective memory is irritating but not unexpected.

RGK

* H/t Jonathan Bell.

** Ironically, Carswell was probably the first gay or bisexual judge nominated to the Supreme Court, although he was certainly not out of the closet then. Seehere.

Like this:

There are few thing more astounding and wonderful than the fact that John Adams and Thomas Jefferson died on the Fourth of July 1826. At one time, the two men had been friends, that friendship broke apart, and in their later years was put back together.

Their friendship was almost completely torched by the election of 1800. This was also the election that first introduced us to “dirty politics.”

Consider this:

Negative campaigning in the United States can be traced back to John Adams and Thomas Jefferson. Back in 1776, the dynamic duo combined powers to help claim America’s independence, and they had nothing but love and respect for one another. But by 1800, party politics had so distanced the pair that, for the first and last time in U.S. history, a president found himself running against his VP.

Things got ugly fast. Jefferson’s camp accused President Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” In return, Adams’ men called Vice President Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” As the slurs piled on, Adams was labeled a fool, a hypocrite, a criminal, and a tyrant, while Jefferson was branded a weakling, an atheist, a libertine, and a coward. Even Martha Washington succumbed to the propaganda, telling a clergyman that Jefferson was “one of the most detestable of mankind.”

JEFFERSON HIRES A HATCHET MAN

Back then, presidential candidates didn’t actively campaign. In fact, Adams and Jefferson spent much of the election season at their respective homes in Massachusetts and Virginia. But the key difference between the two politicians was that Jefferson hired a hatchet man named James Callendar to do his smearing for him. Adams, on the other hand, considered himself above such tactics. To Jefferson’s credit, Callendar proved incredibly effective, convincing many Americans that Adams desperately wanted to attack France. Although the claim was completely untrue, voters bought it, and Jefferson won the election.

PLAYING THE SALLY HEMINGS CARD

Jefferson paid a price for his dirty campaign tactics, though. Callendar served jail time for the slander he wrote about Adams, and when he emerged from prison in 1801, he felt Jefferson still owed him. After Jefferson did little to appease him, Callendar broke a story in 1802 that had only been a rumor until then—that the President was having an affair with one of his slaves, Sally Hemings. In a series of articles, Callendar claimed that Jefferson had lived with Hemings in France and that she had given birth to five of his children. The story plagued Jefferson for the rest of his career. And although generations of historians shrugged off the story as part of Callendar’s propaganda, DNA testing in 1998 showed a link between Hemings’ descendents and the Jefferson family.

But true friendship can survive raw bitterness. Thus it was so between Adams and Jefferson:

Just as truth persists, however, so does friendship. Twelve years after the vicious election of 1800, Adams and Jefferson began writing letters to each other and became friends again. They remained pen pals for the rest of their lives and passed away on the same day, July 4, 1826. It was the 50th anniversary of the Declaration of Independence.

Id.

And so it was as the heat boiled up during the summer of 1826, a remarkable event occurred:

On July 4, 1826, at the age of 90, Adams lay on his deathbed while the country celebrated Independence Day. His last words were Thomas Jefferson still survives.* He was mistaken: Jefferson had died five hours earlier at Monticello at the age of 82.

Some things are more important than others and that includes true friendship.

RGK

*The words attributed to Adams find no evidence in the historical records. That means absolutely nothing to me. I want to believe John Adams celebrated his old friend as Mr. Adams passed from this world.

Stop the whining, the crying, the self-serving sensitivity and the narcissistic presumptiveness that you are entitled to decide the rules of life for others because they’re too feeble and delicate to speak for themselves. Show them the courtesy of being real people by treating them like real people.

We need to talk. If you can’t handle it, then move aside and let the grown-ups do it. And stay out of the way.

I agree entirely with what Scott wrote. But, I have an honest concern.

There are more than a few adult white people (like Scott) who see and will treat black people like real people. But, if we have a real conversation between grown-ups then black people need to approach the conversation in the same way.

Ultimately, we would get down to the issue of class and throwing away the lives of young black men in prison. What concerns me is that if we have that conversation the “real people” opposite must be willing to accept some horrible truths. I am not at all sure that the vast majority of “real” black people are ready to truly grapple with the truth as it regards class. But, then again, I am a racist old white man with a nasty history of sending legions of young black men to prison without so much as a blink.